They haven't provided the contract that gives them authority to operate on the site.
They provide two "witness statements" that claim such an authority, and say "this authority was in effect was in effect during the time the PCN was issued", but both of these are dated in 2023, two years prior to this incident. One point to make is that they haven't provided their contract, and a "witness statement" is not a suitable alternative.
You could also make the point that even if a "witness statement" was sufficient, they have failed to provide a contemporaneous one. The fact that they were able to produce witness statements for a PCN issued in 2023, but have not been able to produce one now, creates significant doubt that the authority that existed then still exists now.
Thanks for that. I'm just writing a draft currently, does this seem okay:
In response to the parking operators submitted evidence, I would first like to address an incorrect statement made in ‘Section B’. The operator states, “By allowing his vehicle to be parked on the site Mr [My Name] entered into a valid contract and agreed to abide by its terms and conditions.” I, Mr [My Name], was not driving the vehicle and did not enter into any contract with the parking operator nor do I personally own the vehicle.
I maintain all 10 grounds for appeal, particularly the fatal legal defects under Points 1, 2, 5, and 8 of our appeal. The Operator's evidence is insufficient, misleading, and fails to meet the strict burden of proof required.
1. Payment & Contract Failure (Point 1 & 9): The Operator confirms the £33.00 payment but fails to rebut the core argument: the charge is a punitive penalty imposed upon a paying customer when the service failed. The Operator's reliance on ParkingEye v Beavis is misplaced, as that case concerned free parking deterrence; it is irrelevant to a paid, frustrated contract.
2. Fatal PoFA Failure (Point 2 & 4): The Operator has failed to provide a copy of the served NtK showing a legible "period of parking" as required by PoFA Schedule 4 Paragraph 9(2)(a). Their evidence focuses only on the date of issue, ignoring the mandatory content requirements. The failure to clearly identify the "creditor" (point 4) remains a fatal defect.
3. Prohibitive Contravention (Point 5): The Operator confirms the charge is for "obstruction," which is a prohibitive term that cannot legally form the basis of a private parking contract that claims damages.
4. Failure to Prove Contravention (Points 6 & 10): Furthermore, the Operator has provided no evidence to substantiate the core claim that the vehicle was "causing an obstruction." Their submitted photos merely show the vehicle's position; they do not show any blocked road users, blocked access, or an unsafe situation. The Operator failed to mitigate by asking the driver to move. Given the lack of reliable timestamps (Point 2) and the absence of any photographic evidence of genuine impedance, the Operator has failed to meet the factual burden of proof necessary to establish a breach of terms. This evidential insufficiency alone necessitates the allowance of the appeal.
5. Landowner Authority is Unproven (Point
: The Operator has submitted two generic “witness statements”, which is not the strict proof (the unredacted, contemporaneous contract) required by POPLA to confirm their authority over the specific locus (HGV area) or to enforce this specific contravention ("obstruction"). Both “Witness Statements” are dated 2023, two years prior to this incident. They haven’t provided their contract, and a “witness statement” is not a suitable alternative.
Even if a “witness statement” was sufficient, they have failed to provide a contemporaneous one. The fact they were able to produce witness statements for a PCN issued in 2023, but have not been able to produce one now, creates significant doubt that the authority that existed then still exists now.
